This opinion is subject
to editorial correction before final publication.

Judge GIERKE delivered the opinion of the Court.

A general court-martial convicted Appellant,
pursuant to his pleas, of wrongful use of cocaine, in violation of Article
112a, Uniform Code of Military Justice, 10 U.S.C. § 912a (2002). The
adjudged and approved sentence, imposed by a panel of officer and enlisted
members, provides for a bad-conduct discharge, confinement for three months,
total forfeitures, and reduction to the lowest enlisted grade. The Court
of Criminal Appeals affirmed the findings and sentence in an unpublished
opinion. United States v. Miles, ACM 34094 (A.F. Ct. Crim. App.
Apr. 24, 2001).

This Court granted review of the following
issue:

WHETHER THE MILITARY JUDGE ABUSED HIS DISCRETION
IN DENYING DEFENSE COUNSEL’S CHALLENGE FOR CAUSE AGAINST [LIEUTENANT COLONEL]
FERNANDEZ.For the reasons set out below, we reverse.

Factual Background

During the military judge’s inquiry into Appellant’s
guilty pleas, Appellant told the military judge that sometime between September
28 and October 12, 1999, he went boating with friends, met a young woman,
and later accompanied the woman to a party. At the party, Appellant drank
two or three beers in addition to the alcoholic beverages he had consumed
during the day. Someone at the party offered Appellant a tray containing
a white powdery substance, and Appellant snorted it. He felt no effect
from the substance, but a urinalysis after the party tested positive for
cocaine.

During general voir dire, defense counsel asked
the members, "Has anyone known someone, had a family member or friend,
a co-worker who’s ever been a victim of a crime where alcohol or drugs
were involved?" Lieutenant Colonel (Lt Col) Michael Fernandez responded
that his nephew was born with a form of epilepsy as a result of his mother’s
cocaine use during pregnancy, and that as a result his nephew died when
he was 10 years old. Lt Col Fernandez said that the charges in this case
triggered memories of his nephew’s illness and death, because the charges
reminded him of a newspaper article about the effects of drug abuse that
he had written for the base newspaper. Defense counsel asked, "Sir, is
there anything about that that would weigh on your conscience in going
over the facts and circumstances of this case?" Lt Col Fernandez responded
in the negative.

During individual voir dire, Lt Col Fernandez
explained that every week a different commander is tasked to write an article
for the base newspaper. Lt Col Fernandez described his article as a "self
experience." Asked to describe the article in more detail, he explained:

Well, basically, it talked about the impact
of using cocaine, how it affects folk’s [sic] lives, and sometimes we think
it just affects the person who used the cocaine, when, in fact, it [sic]
I was trying to point out that it affects other folks as well. Case in
point being my nephew, where he had no involvement with cocaine, but then
his mother using it during her pregnancy and then him being born and the
effect it had on him.Lt Col Fernandez said that, in addition to discussing
the impact of drugs on his nephew, his article connected drug use to the
military. He explained:I make people look inside and think about
is it worth it, using the drugs, how would they feel flying in an aircraft
where a pilot was under the influence, or being on an airplane where an
air traffic controller, who’s controlling the aircraft, is under the influence,
or a doctor who’s performing some type of lifesaving surgery being under
the influence of alcohol or drugs.Lt Col Fernandez stated that the newspaper is
circulated "pretty much to the entire base population," and that the article
is "usually on the inside of the front page," with a picture of the author
as well as his name and duty title. The article was scheduled to be published
four days after the court-martial convened.

Trial counsel, observing that "[e]vidently
it was a very traumatic experience for you and your family," asked Lt Col
Fernandez if he "[w]ould... be able to set aside the situation" as well
as the article itself and decide the case solely on the facts. Lt Col Fernandez
responded in the affirmative. Neither the military judge nor counsel for
either side asked Lt Col Fernandez to produce the text of the article.

The military judge denied a challenge for cause
against Lt Col Fernandez, stating that he did not find actual or implied
bias. The defense counsel then exercised a peremptory challenge against
Lt Col Fernandez, stating that he would have used the peremptory challenge
elsewhere if the challenge for cause had been granted.

The Court of Criminal Appeals held that the
military judge did not abuse his discretion by denying the challenge. Based
on Lt Col Fernandez’s "honest and forthright" responses during voir dire,
the court below agreed with the military judge’s determination that there
was no actual bias. With respect to implied bias, however, the court below
found it "somewhat harder to pin down." The court concluded its review
of implied bias by stating: "Out of an abundance of caution, another judge
might have granted the challenge for cause based on the timing between
the court-martial and the publication of the article. However, that is
not the test. We find this judge did not abuse his discretion by denying
the challenge." Miles, ACM 34094, slip opinion at 5.

Discussion

Before this Court, Appellant focuses on implied
bias, arguing that "Lt Col Fernandez’s personal experiences with, and views
on, the effects of cocaine use would cause an objective observer of the
military justice system to doubt the fairness of [A]ppellant’s court-martial."
The Government argues that Lt Col Fernandez was not necessarily disqualified
because his nephew was a victim of drug abuse, and that Lt Col Fernandez’s
decision "to make his personal situation public" does not, by itself, create
an appearance of bias.

Rule for Courts-Martial [hereinafter R.C.M.]
912(f)(1)(N) requires that a member be excused for cause whenever it appears
that the member "[s]hould not sit as a member in the interest of having
the court-martial free from substantial doubt as to legality, fairness,
and impartiality." This rule includes actual bias as well as implied bias.
United
States v. Daulton, 45 M.J. 212, 217 (C.A.A.F. 1996). Actual bias and
implied bias are separate tests, but not separate grounds for a challenge.
SeeUnited States v. Armstrong, 54 M.J. 51, 53 (C.A.A.F.
2000). "The focus of this rule is on the perception or appearance of fairness
of the military justice system." United States v. Dale, 42 M.J.
384, 386 (C.A.A.F. 1995). There is implied bias "when most people in the
same position would be prejudiced." United States v. Smart, 21 M.J.
15, 20 (C.M.A. 1985). "Implied bias is viewed through the eyes of the public,
focusing on the appearance of fairness." United States v. Rome,
47 M.J. 467, 469 (C.A.A.F. 1998).

Military judges are enjoined to be liberal
in granting challenges for cause. SeeSmart, 21 M.J. at 18-19
n. 1. Because a challenge for cause for actual bias is essentially one
of credibility," the military judge’s decision is given "great deference"
because of his or her opportunity to observe the demeanor of court members
and assess their credibility during voir dire. Daulton, 45 M.J.
at 217 (citations ommitted). However, implied bias is reviewed under an
objective standard. Id. Thus, we give the military judge less deference
on questions of implied bias. United States v. Youngblood, 47 M.J.
338, 341 (C.A.A.F. 1997). "[I]ssues of implied bias are reviewed under
a standard less deferential than abuse of discretion but more deferential
than de novo." United States v. Downing, 56 M.J. 419, 422 (C.A.A.F.
2002).

A member is not per se disqualified if he or
she or a close relative has been a victim of a similar crime. Where a particularly
traumatic similar crime was involved, however, we have found that denial
of a challenge for cause violated the liberal-grant mandate. SeeDaulton, 45 M.J. at 214 (sister and mother of court member sexually
abused); Smart, 21 M.J. at 16 (member was victim of multiple armed
robberies).

Applying the test for implied bias, we hold
that the military judge abused his limited discretion and violated the
liberal-grant mandate in this case. Lt Col Fernandez’s 10-year-old nephew
died as a result of his mother’s prenatal use of cocaine. He described
this tragedy in his article for the base newspaper that was scheduled to
be published shortly after Appellant’s court-martial. The record does not
reflect whether the trial counsel’s comment about the traumatic nature
of this event was based on his observation of Lt Col Fernandez’s demeanor
or by his familiarity with the text of the article. Nevertheless, trial
counsel’s comment that the event "evidently" was "a very traumatic experience"
reflects the trial counsel’s awareness, notwithstanding Lt Col Fernandez’s
sincere disclaimer during voir dire, that Lt Col Fernandez had been personally
affected by another person’s drug abuse. We conclude that asking Lt Col
Fernandez to set aside his memories of his nephews’ death and to impartially
sentence Appellant for illegal drug use was "asking too much" of him and
the system. SeeDaulton, 45 M.J. at 218; see alsoDale, 42 M.J. at 386.

Furthermore, apart from Lt Col Fernandez’s
personal experience with the effects of drug abuse, the scheduled publication
of his "self-experience" four days after his participation in a court-martial
for drug abuse would have added to the serious doubts in the minds of a
reasonable observer about the fairness of the trial, if he had not been
peremptorily challenged. SeeUnited States v. Weisen, 56
M.J. 172, 176 (C.A.A.F. 2001)("serious doubts about the fairness of the
military justice system" raised by denial of challenge). Thus, we conclude
that the military judge violated the liberal-grant mandate by denying the
challenge for cause.

Because Appellant pleaded guilty and was found
guilty by the military judge, the error was harmless with respect to the
findings. However, we hold that the peremptory challenge of Lt Col Fernandez
did not render the error harmless with respect to the sentence. By promulgating
R.C.M. 912(f)(4), the President granted Appellant the right to save his
single peremptory challenge for use against a member not subject to challenge
for cause. Armstrong, 54 M.J. at 55. That right was violated in
this case when Appellant was forced to use his peremptory challenge against
Lt Col Fernandez.

Decision

The decision of the United States Air Force
Court of Criminal Appeals is affirmed with respect to the findings but
reversed with respect to the sentence. The sentence is set aside. A sentence
rehearing is authorized.

CRAWFORD, Chief Judge (dissenting):

Even if the military judge clearly abused his
discretion by denying the challenge for cause against Lt Col Fernandez
on the basis of implied bias,1
that error was rendered harmless when Appellant used his peremptory challenge
to remove Lt Col Fernandez from the panel, leaving no one else whom Appellant
had challenged for cause. "As this Court has often stated, at its core,
implied bias addresses the perception or appearance of fairness of the
military justice system." United States v. Downing, 56 M.J. 419,
422 (C.A.A.F. 2002). In this case, a panel of completely unbiased members
sentenced Appellant. It does not get any fairer than that.

1. Introduction

At the outset, I note my agreement with the
following two principles:

1. When an accused unsuccessfully challenges
a member for cause, and thereafter uses his or her peremptory challenge
to remove that member from the panel, the accused preserves the issue for
appeal by stating that but for the denied challenge for cause, the peremptory
challenge would have been used against a different member of the panel.
United
States v. Eby, 44 M.J. 425, 427 (C.A.A.F. 1996); Rule for Courts-Martial
912(f)(4) [hereinafter R.C.M.].

2. There is a hierarchical scheme of rights
and duties in the military justice system, and when an R.C.M. confers a
greater right than the Constitution or a statute, an accused is generally
entitled to the benefit of that greater right. United States v. Davis,
47 M.J. 484, 485-86 (C.A.A.F. 1998); United States v. Romano, 46
M.J. 269, 274 (C.A.A.F. 1997).

Having said that, I do not believe that anything
in R.C.M. 912(f)(4) precludes a constitutional and statutory harmless error
analysis when a military judge erroneously denies an accused’s challenge
for cause, and thereafter, the accused uses his or her peremptory challenge
to remove that member from the panel, even if the accused preserves the
issue for appeal in accordance with R.C.M. 912(f)(4). In other words, R.C.M.
912(f)(4) does not create a per se rule of reversal, and to the extent
the majority opinion in United States v. Armstrong, 54 M.J. 51 (C.A.A.F.
2000), is to the contrary, I disagree with its rationale.

Stare decisis requires us to exercise judicial
restraint by following precedent. But that doctrine does not apply when
an opinion like Armstrong is poorly reasoned, or when "developments
in the law" have not been fully explored. United States v. Tualla,
52 M.J. 228, 232-33 (C.A.A.F. 2000)(Crawford, C.J., concurring). In my
view, Armstrong fails to recognize the impact of Supreme Court precedent
on this area of the law. Therefore, I cannot follow Armstrong and
must dissent.

2. Supreme Court Precedent

In Ross v. Oklahoma, 487 U.S. 81 (1988),
the Supreme Court considered the Sixth Amendment implications of a state
trial judge’s erroneous failure to remove a juror for cause, and the petitioner’s
subsequent use of a peremptory challenge to strike that juror. The petitioner
used all of his peremptory challenges, but did not challenge for cause
any of the jurors who actually decided the case. On those facts, the Supreme
Court found no Sixth Amendment violation and reasoned as follows:

Any claim that the jury was not impartial
. . . must focus . . . on the jurors who ultimately sat. None of those
12 jurors, however, was challenged for cause by petitioner, and he has
never suggested that any of the 12 was not impartial. . . .

. . .

Petitioner was undoubtedly required to exercise
a peremptory challenge to cure the trial court’s error. But we reject the
notion that the loss of a peremptory challenge constitutes a violation
of the constitutional right to an impartial jury. . . . So long as the
jury that sits is impartial, the fact that the defendant had to use a peremptory
challenge to achieve that result does not mean the Sixth Amendment [right
to an impartial jury] was violated.

Id. at 86, 88. In other words, any error
was harmless because no one who was partial actually served on the jury.

In United States v. Martinez-Salazar,
528 U.S. 304 (2000), the Court again addressed "the erroneous refusal of
a trial judge to dismiss a potential juror for cause, followed by the defendant’s
exercise of a peremptory challenge to remove that juror," this time in
the federal system. Id. at 307. As in Ross, the petitioner
used all of his peremptory challenges, and no juror who actually sat was
biased. However, the question in Martinez-Salazar was not whether
the Sixth Amendment was violated, but whether the Fifth Amendment Due Process
Clause was violated, i.e. - whether Martinez-Salazar was denied any right
granted him by Federal Rule of Criminal Procedure 24(b).2

Consistent with Ross, the Martinez-Salazar
Court found no Fifth Amendment violation and again performed a harmless
error analysis, holding that "if the defendant elects to cure such an error
by exercising a peremptory challenge, and is subsequently convicted by
a jury on which no biased juror sat, he has not been deprived of any rule-based
or constitutional right." Id. at 307. In support of this holding,
the Court stated:

[U]nlike the right to an impartial jury guaranteed
by the Sixth Amendment, peremptory challenges are not of federal constitutional
dimension. . . .

. . .

After objecting to the District Court’s denial
of his for-cause challenge, Martinez-Salazar had the option of letting
[the juror] sit on the petit jury and, upon conviction, pursuing a Sixth
Amendment challenge on appeal. Instead, Martinez-Salazar elected to use
a [peremptory] challenge to remove [the juror]. . . . This was Martinez-Salazar’s
choice. The District Court did not demand – and Rule 24(b) did not require
– that Martinez-Salazar use a peremptory challenge curatively.

. . .

Martinez-Salazar received precisely what federal
law provided[.]

Id. at 311, 315, 317 (footnote omitted).
The Court summed it up concisely: "A hard choice is not the same as no
choice." Id. at 315.

3. Appellant’s Case

Ross and Martinez-Salazar are
dispositive in Appellant’s case. Appellant challenged only two members
for cause -– Col Neiheisel and Lt Col Fernandez. The military judge granted
the challenge for cause against Col Neiheisel but denied it as to Lt Col
Fernandez. Thereafter, Appellant used his peremptory challenge to remove
Lt Col Fernandez, resulting in an impartial panel containing no members
whom Appellant challenged for cause. Consequently, any error in denying
the challenge for cause against Lt Col Fernandez was harmless in terms
of the Sixth Amendment.

Moreover, deciding this case on the basis of
harmless error does not violate Appellant’s Fifth Amendment due process
rights because it does not deprive him of anything granted him by the statutes
or rules governing peremptory challenges and appellate review of denied
causal challenges in the military justice system.

a. The Statutes and Rules

The relevant statutes are Articles 41(b)(1)
and 59(a), Uniform Code of Military Justice, 10 U.S.C. §§ 841(b)(1)
and 859(a)(2002). Article 41(b)(1) provides simply that every accused is
entitled to "one peremptory challenge of the members of the court."3
It does not require that the challenge be used, and does not suggest the
appellate consequences of any given use. On the other hand, Article 59(a)
states that "[a] finding or sentence of court-martial may not be held incorrect
on the ground of an error of law unless the error materially prejudices
the substantial rights of an accused."

The relevant rules are R.C.M. 912(f)(4) and
(g). Rule 912(g) states merely that an accused "may challenge one member
peremptorily," but does not require it. Rule 912(f)(4) discusses the appellate
consequences that result in a variety of situations when a for-cause challenge
is denied and the peremptory challenge is implicated. Specifically, it
states:

When a challenge for cause has been denied,
failure by the challenging party to exercise a peremptory challenge against
any member shall constitute waiver of further consideration of the
challenge upon further review. However, when a challenge for cause is denied,
a peremptory challenge by the challenging party against any member shall
preserve the issue for later review, provided that when the member
who was unsuccessfully challenged for cause is peremptorily challenged
by the same party, that party must state that it would have exercised its
peremptory challenge against another member of the challenge for cause
had been granted.(Emphasis added.)

Significantly, nothing in the language of R.C.M.
912(f)(4) precludes a harmless error analysis of the denied challenge for
cause. When the requirements of R.C.M. 912(f)(4) are met, an accused is
guaranteed one thing only: that we will not apply waiver. The accused is
not guaranteed that once through the courthouse door with his issue thus
preserved, normal constitutional and statutory harmlessness analysiswill
not apply. Thus, I disagree with the majority’s rationale in Armstrong,
54 M.J. at 54-55.

b. The Result

Appellant had two options when the military
judge denied his challenge for cause against Lt Col Fernandez: use his
peremptory challenge against Lt Col Fernandez, or use it against another
member.4 Nothing in the
applicable statutes or rules required him to use it against Lt Col Fernandez,
either to cure the military judge’s ruling or to preserve it. As a result,
when Appellant did use his peremptory challenge against Lt Col Fernandez,
he "did not lose a peremptory challenge. Rather, he used the challenge
in line with a principal reason for peremptories: to help secure the constitutional
guarantee of trial by an impartial jury." Martinez-Salazar, 528
U.S. at 315-16.

Having made that hard yet discretionary choice,
and having thereby secured a panel comprised of no one whom Appellant then
or now asserted was in any way biased, any error in the military judge’s
denial of the challenge for cause against Lt Col Fernandez was harmless
beyond a reasonable doubt. Art. 59(a); United States v. Alameda,
57 M.J. 190, 199-200 (C.A.A.F. 2002)(harmless beyond a reasonable doubt
standard for constitutional error).

That conclusion is especially appropriate here,
because Appellant never identified the specific, unbiased member he intended
to remove with his peremptory challenge. Therefore, he cannot even show
the challenge against that member would have been successful. SeeUnited States v. Hurn, 55 M.J. 446, 448 (C.A.A.F. 2001)("upon timely
objection to a peremptory challenge, . . . the burden shifts to the challenging
party" to prove the challenge is lawful); United States v. Witham,
47 M.J. 297 (C.A.A.F. 1997)(gender is unlawful basis for peremptory challenge);
United
States v. Santiago-Davila, 26 M.J. 380 (C.M.A. 1988)(race is unlawful
basis for peremptory challenge).

3
An accused is entitled to additional peremptory challenges in circumstances
other than those present in Appellant’s case. See Article 41(b)(2)
and (c), Uniform Code of Military Justice, 10 U.S.C. § 841(b)(2) and
(c)(2002).

4
The third option of not using it at all would have resulted in Appellant
waiving the causal challenge issue absent plain error. Rule for Courts-Martial
912(f)(4); SeeUnited States v. Tyndale, 56 M.J. 209, 217
(C.A.A.F. 2001).